CONDITIONS OF SALE
These conditions shall apply to any Contract for the sale of goods by the Seller (Atlanta Packaging Ltd) to the exclusion of all other terms and conditions.
1. Formation of the Contract
No order (or subsequent variations) shall form a contract (as part of a contract) until confirmed in writing by the Seller. No description, illustration, design or statement of performance contained in the Seller’s catalogues, price lists, advertising literature forms part of a Contract unless expressly referred to in the Seller’s written confirmation of the order. No oral representation, warranty advice or recommendation made by the Seller, its employees or agents shall be binding on the Seller.
2. Price
The price payable to the Seller is based on Pounds Sterling or Euro’s as indicated. The price is exclusive of value added tax for which the Purchaser shall be additionally liable to the Seller.
3. Delivery
(a) Delivery periods and dates are given in good faith but not by way of warranty or condition. Time will not be the essence of any contract. No liability shall attach to the Seller if delivery periods or dates are not met by any reason whatsoever.
(b) Delivery of the goods will be charged to the Purchaser.
4. Payment
(a) The purchaser shall pay, by bank transfer the price in full, within 30 days of the date of the invoice notwithstanding that delivery may not have taken place and property in the goods has not passed to the Purchaser. If payment is not made on or before the due date, then the Purchaser shall pay the Seller interest at the rate of 4% per annum above the base lending rate of Barclays Bank PLC from the due date for payment until the date of actual payment.
(b) In circumstances where any payments are made by means other than bank transfer, an additional service charge will be payable by the purchaser. The amount of this charge will be £50 or 5% of the sale value, whichever is the greater amount.
(c) In cases where the price is payable by installments any default in the payment of any installment by the Purchaser shall result in the balance of the price becoming immediately payable and interest on the balance at the rate aforesaid shall become payable from the date of the unpaid installment until the date of actual payment.
(d) If the Purchaser fails to make any payment on the due date then the Seller, without prejudice to any other right or remedy available to the Seller, shall be entitled to rescind the Contract, suspend delivery of the goods and appropriate any payment made by the Purchaser to such of the goods as the Seller may think fit.
(e) In the event of insolvency of the Purchaser, the Seller shall have the right not to proceed further with the contract and to charge for goods delivered or (where relevant) work carried out (whether completed or not) such charge to be an immediate debt due from the customer.
(f) When payment is requested by way of a pro-forma invoice, full payment is required prior to delivery of the goods being made.
5. Warranty
(a) The Seller warrants that all goods (except for electrical components) will be free from defects in materials or workmanship for a period of 12 months or 2000 hours of operation from date of delivery whichever is the earliest. The Seller’s obligation under this warranty is limited to the repair or replacement of defective parts. Parts replaced pursuant to this warranty shall be covered by this warranty only for the unexpired balance of the warranty period.
(b) Claims based upon any defect in the goods or failure to correspond with any specification confirmed in writing by the Seller, must be notified in writing to the Seller within 10 days from the date of delivery or (where the defect is not apparent upon reasonable inspection) as soon as practicable after discovery of the defect. If the Purchaser fails to notify the Seller accordingly then the Purchaser shall be bound to pay the price as if the goods had been delivered in accordance with the Contract.
(c) The Seller shall be under no liability if the defect or failure, in the reasonable opinion of the Seller, arises from willful damage, faulty operation or misuse, negligence by the Purchaser or any third party, failure to follow the Seller’s instructions, or alteration, adjustment or repair of the goods without the Seller’s prior approval.
(d) The Seller shall not be liable under any warranty, condition or guarantee if the price of the goods has not been paid by the due date for payment.
(e) All warranties, conditions or other terms implied, by statute or common law are expressly excluded.
(f) Except in the case of death or personal injury caused by the Seller’s negligence the Seller shall not be liable for any consequential loss or damage (whether for loss of profit or otherwise) or other claims for consequential compensation.
6. Risk
The risk in the goods shall pass to the Purchasers (notwithstanding that the property in the goods remain in the Sellers) upon delivery at the purchaser’s premises, or when possession of the goods is taken by a carrier for delivery to the purchaser. The Purchaser must then insure the goods from the time that risk passes to the Purchaser.
7. Reservation of Title
(a) The goods sold under these conditions shall remain the absolute property of the Seller and legal title shall remain vested in the Seller until payment in full of the price invoiced or due in respect of the goods until the time of full payment the Purchaser shall hold the goods as bailee of the Seller and keep them in a manner allowing identification as the Seller’s property.
(b) If the Purchaser shall fail to make payment on or before the due date or the Purchaser (being a Company) enters into liquidation, has a winding up order made against it, or has a receiver, administrator or administrative receiver appointed over its assets, income or any part thereof or (being an individual or partnership) enters into any composition with creditors or has a bankruptcy order made against him (or them) before the properly in the goods has passed to the Seller may enter any premises with such transport as may be necessary and repossess the goods whether affixed to the realty or not. The Purchaser shall indemnify the Seller in respect of any claim whatsoever arising out of or in connection with such entry and repossession. The Seller shall have the right to resell any repossessed goods upon terms
and at such price as are determined by the Seller.
(c) No liquidator, receiver, administrator, administrative receiver or trustee in bankruptcy of the Purchaser shall have authority to sell goods to which the Seller has title without the prior written consent of the Seller.
(d) If the Purchaser sells the goods prior to full payment of the price or whilst sums are due to the Seller on any account whatsoever the Purchaser shall have fiduciary duty to the Seller and must
(i) sell the goods to the sub-purchaser as agent of the Seller (but with no authority to create privity of contract between the Seller and the sub-purchaser) and provide the Seller with details of any such sub-sales.
(ii) sell the goods only in the ordinary course of business and for their full market value.
(iii) hold the whole of the proceeds of sale as trustee for the Seller in a separate bank account and provide the Seller with details of such an account.
(iv) on request assign to the Seller any claim against a sub-purchaser.
(v) not factor for any book debt relating to the goods subject to this Contract.(c) in the event of the Purchaser selling the goods the Purchaser must not give any warranties or incur any liability on behalf of the Seller.
(I) in the event of an insurance claim whilst the goods remain the property of the Seller the Purchaser shall assign the benefits of any such claim to the Seller.
8. Cancellation of Order
In the event of deposits received and the purchaser subsequently cancels the order, any refund wholly or partly will be solely at the discretion of the seller.
9. Intellectual Property
No intellectual property rights including patents, trademarks, registered designs or copyright pass to the Purchaser (or a sub-purchaser) by reason of this Contract.
10. Applicable Law
The Contract and these Conditions shall be covered and construed in accordance with English Law and the parties here to acknowledge and accept the exclusive jurisdiction of the English Courts.